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Immunity from prosecution is government’s agreement not to prosecute you for crimes in exchange for your testimony or information. Federal prosecutors grant immunity when they need your testimony to prosecute more important targets but cannot obtain it because you would invoke Fifth Amendment right against self-incrimination. Two types of immunity exist: use immunity protecting you from prosecution based on your statements or leads derived from them, and transactional immunity completely barring prosecution for offenses you testify about. Immunity is granted through formal court order under 18 U.S.C. § 6002 for use immunity or § 6003 for transactional immunity. Government decides whether to grant immunity – you cannot demand it. Prosecutors grant immunity strategically when your testimony against others is more valuable than prosecuting you, or when they cannot make case against higher targets without your testimony. Immunity requires you to testify fully and truthfully – any false testimony voids immunity and subjects you to perjury charges. Understanding immunity types, procedures, and limitations is critical when facing potential prosecution while possessing information about others’ crimes.
Thanks for visiting Spodek Law Group – a second-generation law firm managed by Todd Spodek, who has defended federal criminal cases for many, many years. We negotiate immunity agreements for clients, analyze whether offered immunity adequately protects them, and prepare witnesses for immunized testimony. Immunity provides powerful protection from prosecution but comes with obligations requiring careful navigation through experienced counsel who understands immunity law and procedure.
Use immunity is more common type granted by federal prosecutors. Under 18 U.S.C. § 6002, government agrees not to use your testimony or any evidence derived from testimony against you in criminal prosecution. This means prosecutors cannot introduce your immunized statements at trial, cannot use leads from statements to find other evidence against you, cannot build prosecution based on information learned from immunized testimony. However, use immunity has important limitation: government CAN prosecute you using evidence obtained independently from your testimony. If prosecutors already had evidence before your testimony, or obtain evidence through sources unrelated to what you said, they can still charge you.
Example of use immunity limitation: You testify under immunity about drug trafficking organization, describing your role and other participants. Government cannot use your testimony statements in prosecution against you. But if government already had surveillance footage of you conducting drug deals before you testified, or if co-conspirators provide testimony about your conduct independent of your immunized statements, government can prosecute using that independent evidence. Government must prove at hearing that prosecution is based on evidence obtained independently, not derived from immunized testimony.
Transactional immunity provides broader protection. Under this rarely-granted immunity, government agrees not to prosecute you at all for offenses related to testimony, regardless of evidence source. Once you testify about certain transactions or conduct under transactional immunity, government cannot prosecute you for those offenses even if they later obtain independent evidence. Transactional immunity is complete bar to prosecution for specified offenses. Federal prosecutors rarely grant transactional immunity because it completely forecloses prosecution. Use immunity is preferred by government because it preserves ability to prosecute based on independent evidence while still compelling testimony.
Immunity must be granted formally through specific procedures. Prosecutors cannot grant informal immunity – it requires court order. Process begins when prosecutors determine they need testimony from someone likely to invoke Fifth Amendment. Common scenarios: witness has incriminating information but will refuse to testify claiming self-incrimination privilege, target of investigation offers cooperation but wants protection from prosecution, key witness in case refuses to testify without immunity protection. Prosecutors prepare immunity application to Attorney General or designated Department of Justice official seeking approval to grant immunity. Application must explain why witness’s testimony is necessary, why witness will likely claim Fifth Amendment privilege, why immunity should be granted despite allowing witness to avoid prosecution.
After internal DOJ approval, prosecutors file motion in district court requesting immunity order under 18 U.S.C. § 6003. Court issues order compelling testimony and granting use immunity. Once immunity order is issued, witness must testify or face contempt sanctions. Witness can no longer invoke Fifth Amendment because prosecution based on testimony is prohibited. Refusing to testify after immunity order results in civil contempt – witness can be jailed until agreeing to testify or until grand jury term expires.
Immunity protection extends to specific testimony and proceedings specified in court order. If immunity granted for grand jury testimony about drug conspiracy, protection covers statements made during grand jury but may not extend to later trial testimony or testimony about unrelated offenses. Witness should clarify immunity scope before testifying. Derivative use protection means government cannot use leads from immunized testimony. If you testify under immunity about co-conspirators, government cannot use your identification of co-conspirators to investigate and gather evidence against you. This is significant protection preventing government from using testimony as roadmap to build case.
Limitations on immunity protection exist. Perjury exception: immunity does not protect against prosecution for perjury or making false statements during immunized testimony. If you lie while testifying under immunity, government can prosecute for perjury even though underlying conduct was immunized. Unrelated offenses: immunity typically covers only offenses related to compelled testimony. If you testify about drug conspiracy but committed unrelated fraud, fraud offenses may not be immunized. Jurisdictional limits: federal immunity protects only against federal prosecution. State prosecutors are not bound by federal immunity grants and could theoretically prosecute in state court for same conduct, though this rarely occurs.
Receiving immunity offer requires careful evaluation. Benefits are substantial: protection from federal prosecution for conduct you testify about, ability to provide information without fear of self-incrimination, potentially avoiding years of imprisonment. Obligations are serious: must testify fully and truthfully or face perjury charges, must comply with all court orders and subpoenas, testimony can be used against others including friends or family, may face retaliation or safety risks from those you testify against. Before accepting immunity and testifying, consult with attorney about scope of protection, whether immunity is use or transactional, what conduct is covered and what isn’t, exposure to perjury charges if any testimony is found false, safety concerns from testifying, collateral consequences like reputational harm.
Negotiating immunity terms is sometimes possible. While prosecutors control immunity decision, attorney can advocate for broader protection: push for transactional rather than use immunity when stakes justify it, seek written agreement clarifying exactly what conduct is immunized, negotiate limitations on how testimony can be used or disclosed, address safety concerns and protective measures if testifying against dangerous individuals. Government is more likely to grant favorable immunity terms when your testimony is critical and cannot be obtained otherwise, when you’re cooperating voluntarily rather than being compelled, when your own criminal conduct was relatively minor compared to targets you can help prosecute.
Once immunity is granted through court order, you must testify when subpoenaed. Invoking Fifth Amendment is no longer available because prosecution based on testimony is barred. Refusing to testify results in contempt sanctions. Civil contempt: court can jail you until you agree to testify or until grand jury term expires (typically 18 months). This is coercive confinement designed to compel compliance, not punishment. Criminal contempt: if refusal is willful and contumacious, court can impose criminal contempt sanctions including additional fines and imprisonment as punishment.
Testifying truthfully is mandatory under immunity. Any false statement during immunized testimony voids immunity protection and subjects you to prosecution for both perjury and original offenses. Government proves perjury by showing statement was material to proceeding, statement was false, witness knew statement was false when made. Even minor inconsistencies can create perjury exposure if government believes you intentionally lied. Preparation before immunized testimony is critical: review all facts thoroughly with attorney, identify areas of uncertainty where you need to acknowledge limited knowledge rather than guess, understand questions completely before answering, correct any mistakes immediately if you realize you misstated something.
Immunity can be granted for various proceedings. Grand jury testimony is most common context for immunity grants. Grand jury investigating crimes needs witness testimony but witness invokes Fifth Amendment. Prosecutors grant immunity compelling witness to testify. Trial testimony immunity is less common but occurs when witness crucial to prosecution will invoke Fifth Amendment at trial. Court grants immunity allowing testimony. Congressional hearings sometimes involve immunity grants. Congress can grant immunity to witnesses in investigations when testimony is deemed necessary. This statutory immunity under different provisions has similar effect as judicial immunity. Regulatory proceedings may involve immunity in administrative investigations by agencies like SEC or FTC when compelling testimony about regulated conduct.
Witnesses can challenge immunity orders in limited circumstances. Challenging inadequate protection: if immunity order is unclear or appears to offer inadequate protection, witness can move for clarification before testifying. Claiming immunity is unnecessary: witness can argue Fifth Amendment privilege doesn’t apply and immunity is inappropriate, though this rarely succeeds. Contesting contempt: if held in contempt for refusing immunized testimony, witness can appeal contempt order arguing immunity protection is insufficient or improper.
Defendants prosecuted despite immunity can challenge prosecution. Kastigar hearing occurs when defendant claims prosecution violates immunity. Defendant must show government used immunized testimony or derivative evidence. If showing made, burden shifts to government to prove prosecution is based on evidence obtained independently from immunized testimony from sources wholly independent of compelled testimony. Government must establish independent source through clear and convincing evidence. If government cannot meet burden, prosecution is barred. Kastigar hearings are heavily litigated when prosecution follows immunity grant.
Todd Spodek has defended federal criminal cases throughout his career, negotiating immunity agreements and representing immunized witnesses. Immunity provides powerful protection from prosecution but requires careful navigation and truthful testimony. When facing potential prosecution while possessing information about others’ crimes, call 212-300-5196 for counsel who understands immunity law and can protect your interests while evaluating cooperation options.
Very diligent, organized associates; got my case dismissed. Hard working attorneys who can put up with your anxiousness. I was accused of robbing a gemstone dealer. Definitely A law group that lays out all possible options and best alternative routes. Recommended for sure.
- ROBIN, GUN CHARGES ROBIN
NJ CRIMINAL DEFENSE ATTORNEYS